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June 15, 2009

Air France Crash Spurs Debate Over Lawsuit Locations

While investigators scour the Atlantic for clues to the cause of the crash of Air France Flight 447, lawyers in Brazil, France and the U.S. are taking steps to determine the proper forum for any lawsuits.

Sophie Bottai, whose client was the first granted victim status in a French criminal probe, said the nation’s courts should review any claims as many passengers were French as were the airline and the airplane, an Airbus SAS A330-200.

“The plane is French, the carrier is French,” said Bottai, representing a 38-year-old Frenchman’s family, who she said wishes to remain anonymous. “The jurisdiction is French.”
Debate over jurisdiction issues may get even more heated with families making the ultimate decision based on where they can receive the most compensation. In addition to where the claims are filed, the amount of any award depends on the victim’s age, family status and work situation, according to lawyers specializing in aviation disasters.

Investigators are searching an area in the Atlantic Ocean between Brazil and Senegal that’s 70 kilometers (44 miles) in radius for clues the Rio de Janeiro to Paris flight on June 1 and haven’t located the “black box” flight-data recorders.

“For Brazilian passengers of the Air France flight, the best option is to start legal claims in Brazil,” said Flavia Fornaciari, a partner with Sao Paulo-based law firm Clito Fornaciari Jr. Advocacia.

Air France complained in a letter to Brazil’s bar association about lawyers soliciting victims’ families at a hotel where the airline was housing them. The bar association said it may launch a formal probe of possible ethics violations.

Victims’ families are certain to receive a portion of compensation from Air France, regardless of where they bring suits, because a carrier has “primary liability” when one of its planes crash, regardless of the cause, according to James Healy-Pratt, head of the aviation group at the Stewart’s Law firm in London, which has worked on major air-disaster cases.

Compensation for families depends on not only where they eventually pursue their claims but also on criteria such as the victim’s age, family status and work situation, according to lawyers specializing in aviation disasters. The passengers came from almost three dozen countries, further complicating issues.

International accords limit the families to five places to bring claims: where the carrier is based, its main place of business, the victim’s home country, the passenger’s ultimate destination, and where the ticket was purchased.

Bottai said that her clients, who received approval from the judge leading France’s criminal probe last week, asked for civil party status because they believed “everything isn’t being said” by the investigators.

Gaining victim status, also known as civil-party status, will allow Bottai access to case files to track the probe and quicker answers to questions about the investigation.

The largest number of victims in the Air France crash were French, with 61 passengers, according to Air France. Next were Brazilians, with 58 passengers, followed by 26 Germans. Another 30 nationalities were represented onboard, including two U.S. citizens.

“It’s not a simple matter of this is a French accident, it’s all going to happen in France and French lawyers should be doing it all,” said Healy-Pratt, who has been contacted by lawyers for victims’ families in several countries for advice.

While Brazilian courts can be almost as generous as U.S. courts in awards of compensation, they’re slow, said Healy- Pratt.

U.S. courts may be limited to the two American victims’ families, but any eventual finding by investigators that the failure of a component made in the U.S. contributed to the crash would open the way for litigation there.

Litigation in the U.S. is more focused on getting answers and changing company policy through high compensation awards and a broad fact-finding process, said Floyd Wisner, a specialist in aviation law in St. Charles, Illinois. Victims’ families tend to make a priority out of finding the causes of a crash and preventing a recurrence, he said.

“If you want to get to the bottom of something, if you want answers, probably the best place in the world is a U.S. court,” said Wisner. “When you hit them where it hurts and they have to pay damages and in the interest of preventing such expenditures in the future, they make changes.”
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